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HSUS and the 'pottery barn rule'

If you walk into a store with a lot of fragile objects, you might see a sign that says, “You break it, you own it.” Although the pottery barn doesn’t have this rule, despite the common misconception, it is a principle firmly ensconced in legal precedent. And by the same reasoning, the fate of the potentially broken California egg industry is now owned by the Humane Society of the United States. Even if you’re not in the egg business, the scrambling and the disarray are worth noting.

HSUS was the major funder and promoter of the Proposition 2 campaign in California. HSUS pushed that campaign to require more space for egg layers in spite of research showing that the regulations could bankrupt the state’s egg industry—so said UC-Davis agronomists. Promar International, an agricultural research firm, came to a similar conclusion.

In short, HSUS pushed a campaign with the knowledge and obvious intention of driving the state egg farmers out of business. For every job lost in California as a result, HSUS needs to take responsibility.

HSUS might reply that it tried to get national egg standards that would spread the pain across the industry, i.e. the “level-playing-field” argument. That’s just a ruse. By increasing production costs for more farmers, it would simply spread the job loss as smaller farms with less access to capital closed because they couldn’t afford the federal mandate. There would be losses nationwide instead of just in one state—but that’s hardly something to crow about.

At this writing, we are now presented with the following playing field: The federal Egg Bill requiring larger cages hasn’t passed; there’s Prop 2 compliance uncertainty with an approaching deadline; and there’s the possibility of the King amendment passing in Congress, which prevents California from banning out of state eggs from farms not in compliance with CA standards.

If King’s amendment passes, we’ll be right back to where we were after Prop 2: With an HSUS law that was logically going to result in putting state egg farmers out of business. If that’s the case, farmers may move elsewhere.

But let’s assume the King Amendment doesn’t pass, and that the Egg Bill likewise doesn’t pass. Where does that leave Prop 2 and egg farmers both in California and elsewhere?

Right now, that still seems up in the air — thanks, again, to HSUS.

While a state court recently upheld Prop 2, rejecting claims from farmers that the law was unclear, it remains to be seen if further litigation will occur—from HSUS. Since Prop 2, HSUS has been dodgy on just how much space per chicken is required to abide by the law.

This summer, the California Department of Food and Agriculture defined Prop 2 as requiring 116 square-inches per hen. But HSUS has, over the course of the past several years, given differing answers on the square inches it sees as satisfying the law. HSUS claimed in 2010 that it was “crystal clear” that Prop 2 required all farms to go cage-free. Then, this year, HSUS said that 200 squares inches would meet the requirements of Prop 2.

So which is it?

HSUS has told the media that, if the federal egg bill fails, it will as a general rule not accept 116 square-inches as an acceptable housing standard for egg-laying hens. So it’s fair to wonder whether, if the egg bill doesn’t pass before January 1, 2015, when Prop 2 goes into effect, whether HSUS will challenge the California Department of Food and Agriculture’s determination that 116 square-inches is sufficient under Prop 2. (Is your head spinning yet?)

Frankly, there’s no reason to think that HSUS won’t sue. If it didn’t, it would be ceding territory on its own initiative. And the result of a challenge to the CDFA could be damaging to California egg farmers, many of whom have likely already started investing in Prop 2 compliance.

If California tries to enforce the law that applies Prop 2 to anyone trying to sell eggs in the state, litigation will likely be launched in federal court on the grounds that it interferes with interstate commerce. And that will continue the drama for several years. A state may interfere with interstate commerce in limited circumstances when the health of citizens is at risk, and the writers of AB1437 stretched themselves into an argument that eggs produced in non-Prop-2-compliant housing would be a health risk.

But the evidence that larger cage or cage-free eggs are significantly more Salmonella-free is weak at best. It’s quite possible that a court could toss the protectionist AB1437. That scenario would leave egg farmers in California where they were right after HSUS successfully passed Prop 2: Screwed, thanks to HSUS.

So what’s the lesson here for anyone in the ag community? Don’t let HSUS make inroads and get the upper hand. These vegans and their attorney friends will pull out the stops to attack agriculture. Sometimes it’s a frontal attack. Sometimes it’s through a backdoor approach. In any event, it’s important to be proactive and to stay on offense. If you don’t, HSUS will happily take the initiative. And they aren't afraid to own the breakage in the industry.

Rick Berman is Executive Director of the Center for Consumer Freedom, a nonprofit coalition supported by restaurants, food companies and consumers to promote personal responsibility and protect consumer choices. The views presented here are expressly those of the author. Visit HumaneWatch.org to learn more.